Gold Coast City Council v. Mountdene Pty Ltd & Ors
[2008] QPEC 96
•26 September 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Gold Coast City Council v Mountdene Pty Ltd & Ors [2008] QPEC 96 PARTIES: GOLD COAST CITY COUNCIL (Applicant)
v
MOUNTDENE PTY LTD (First Respondent)
and
JOHN PATRICK DOONEY (Second Respondent)
and
KENT THOMAS MURPHY AND SARAH FRANCES MURPHY (Third Respondents)
and
LEIZA RAE PARSONS (Fourth Respondent)
and
COLIN JOHN WRIGHT AND LORAINE MAVIS WRIGHT (Fifth Respondents)
and
MARK ANTHONY KRICK (Sixth Respondent)
and
KAREN PATRICIA GATES (Seventh Respondent)
and
FRANK WILLIAM FRANCIS AND SANDRA EVELYN DENISE FRANCIS (Eighth Respondents)
and
ALAN CHRISTOPHER O’BRIEN AND PATRICIA JAYNE O’BRIEN (Ninth Respondents)FILE NO/S: 482 of 2006 DIVISION: Planning and Environment PROCEEDING: Application for costs DELIVERED ON: 26 September 2008 DELIVERED AT: Brisbane HEARING DATE: 24 July 2008 and 8 September 2008 with final submissions received on 24 September 2008 JUDGE:
Kingham DCJ
ORDER:
I ORDER THE FIRST AND SECOND RESPONDENTS TO PAY THE COSTS OF AND INCIDENTAL TO THE COUNCIL’S APPLICATION HEARD ON 24 JULY 2008 OF THE APPLICANT, THE FOURTH, FIFTH, SIXTH, SEVENTH AND EIGHTH RESPONDENTS.
CATCHWORDS:
ENFORCEMENT ORDER – APPLICATION TO VARY – COSTS - frivolous or vexatious – default in procedural requirements – whether costs order should be made
Integrated Planning Act 1997 s 4.1.23(e), s 4.1.23(1), 4.1.23(2), s 4.1.23(2) (b)
Hall & Ors v Nanago Shire Council [2006] QPELR 278
Hervey Bay City Council v Strathopoulis [2000] QPELR 253
Mudie v Gainriver Pty Ltd (No. 2) [2003] QdR 271
Oceanic Sunline Special Shipping Company Inc v Fay [1988] 165 CLR 197
TW Hadley Pty Ltd v Cairns City Council [2004] QEPLR 159
COUNSEL:
M Hinson SC and N Kefford for the applicant
B G Cronin for the first and second respondents
M Treherne for the fourth respondent
SOLICITORS:
Minter Ellison - Gold Coast for the applicant
Haney Lawyers for the first and second respondents
Gall Standfield & Smith for the fourth, sixth, seventh and eighth respondents (on 24 July 2008) and for the seventh and eighth respondents (on 8 September 2008)
Applications have been made for costs orders arising from two related applications. The first, an application by the Gold Coast City Council for enforcement orders, was determined by orders on 25 July 2008 in the terms sought by council. A subsequent application by the first and second respondents (the developers) resulted in variations to those orders on 8 September 2008. Council and some of the respondents seek orders that the developers meet their costs of either or both applications.
Usually, each party must bear their own costs (s 4.1.23(1) Integrated Planning Act. A party seeking a different order must first establish one or other of the circumstances specified in s 4.1.23(2). The court must then decide whether to exercise its discretion to depart from the usual rule as to costs (TW Hadley Pty Ltd v Cairns City Council at 160).
Council seeks an order for the costs of both applications. The seventh and eighth respondents, who were represented at that hearing and the fifth respondents, who did not appear, likewise seek such an order. The fourth and sixth respondent sought costs for council’s application only. The seventh and eight respondents and the fifth respondents also seek an order for their costs of the developer’s application to vary the enforcement orders.
All parties seeking costs rely upon two circumstances to enliven this court’s discretion as to costs. Primary reliance was placed on s 4.1.23(e). It provides the court may order costs where:
“a party has incurred costs because another party has defaulted in the court’s procedural requirements”
The developers counter their default was in relation to substantive not procedural requirements. Council’s application was brought because the developers failed to comply with the order of Judge Wall QC of 16 November 2007 which required them to complete within 5 months works referred to in a development permit.
Plainly, that was not an order relating to a step to be taken in these proceedings. The relief sought and obtained on that occasion was substantive (Hervey Bay City Council v Strathopoulis). Section 4.1.23(2)(e) does not enliven the court’s discretion to award costs in this case.
Alternatively, Council and the respondents argued the developers’ conduct of the applications was frivolous or vexatious (s 4.1.23(2) (b)). Costs may be argued against a party whether they have applied for or resisted relief (Mudie v Gainriver Pty Ltd). What is in question is not a party’s conduct generally: rather it is its conduct in the proceedings which falls to be examined (Hall & Ors v Nanago Shire Council).
The words frivolous or vexatious are not defined in the Act and should be given their ordinary meaning. In Mudie v Gainriver Pty Ltd, McMurdo P and Atkinson J applied the dictionary definitions:
frivolous: “1. Of little or no weight, no worth or importance; not worthy of serious notice; a frivolous objection. 2. characterised by lack of seriousness or sense; frivolous conduct…”
vexatious: “1. Causing vexation; vexing; annoying…”
(Macquarie Dictionary Federation Edition 2001)
They adopted the further elucidation of the term vexatious by Deane J in Oceanic Sunline Special Shipping Company Inc v Fay at 247 as “productive of serious and unjustified trouble and harassment”.
These proceedings were commenced in September 2006 when council became aware of significant unauthorised earthworks on the site. In October 2007 the council issued a development approval for remedial works. That approval arose out of orders of this court which required the developer to apply for council approval and to nominate and comply with a timetable to complete the remedial works. Accordingly, the development approval reflected the developers’ proposals to put matters right.
The developers did not observe that timetable of works. On council’s application, Judge Wall QC ordered the developer to complete the works within five months. That period was derived from the developers’ estimate of the time they then required. Council’s application was made when that deadline expired and little work had been undertaken.
There has been persistent non-compliance with the requirements of approvals and court orders. On one view, that is behaviour unrelated to the conduct of the proceedings themselves. For the developers, Mr Cronin argued their resistance to the council’s application was not frivolous or vexatious because the works initially required to be performed proved to be impractical, something the council did not seriously contest.
On evidence given before me on council’s application by the developers, this was known by them as early as February this year, well before the court’s deadline expired and before council made its application. Yet it was not until council took action that the developers sought to vary the development permit. By then, the permit had expired. What was required was a variation to the orders made by this court.
Serious efforts to investigate and obtain authorisation for different remedial works did not commence until late July this year. In the meantime, the other respondents to council’s application, who own lots in the development site, have been restrained from dealing with their properties pending their remediation.
Whilst these are matters which go to the developers’ non-compliance with substantive orders, their conduct in the proceedings is inextricably linked. Judge Wall’s order was based on the developers’ material. Armed with the knowledge they could not practicably comply with it, they took no action to vary the order. This necessarily transferred the burden in the proceedings to others. It fell to council to take the action necessary to advance the proceedings. This involved considerable time, trouble and expense for the council in preparing comprehensive material about the status of the sites, the further works required and the likely costs. Council briefed counsel and took the lead in bringing and arguing the application. The developers’ conduct in this regard is conduct in proceedings which is fairly described as vexatious and should sound in costs.
It could well be argued that the vexation extended to the developers’ subsequent application to vary the enforcement order. That application was necessary largely because the developer’s material provided an inadequate foundation for the orders they advocated when council’s application was heard. Council’s application was not brought on short notice and the developers had ample opportunity to properly prepare their case. Had they done so, the further application may well have been unnecessary.
Nevertheless, the developers’ application to vary the orders marks an encouraging change of attitude to this court’s orders. They gave early notice they would apply to vary the orders and fruitful negotiations resolved most issues by agreement. This places a different complexion on their conduct. Earlier and more earnest preparation for the hearing of council’s application may have avoided the need for a further application, but, in context, the developers’ conduct in the second application is not vexatious.
The developers argued the fifth respondents have opportunistically sought costs of an application after choosing not to appear at the hearing. They have not argued the fifth respondents did not properly incur costs in obtaining advice on council’s application. The fifth respondents’ decision not to appear limited the costs they incurred. The owners of the development lots have suffered most from the developers’ non-compliance. Council’s application was necessary to ensure remediation works are undertaken so the respondents can, eventually, deal with their lots. All such respondents had an interest in the outcome of council’s application. Whether they chose to appear or not, any costs necessarily incurred as a result of the application should be met.
I order the developers pay the costs of and incidental to council’s application heard on 24 July 2008 of the applicant, the fourth, fifth, sixth, seventh and eighth respondents. I make no other order as to costs.
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